Defamation

Defamation law allows individuals, corporations, and, in some cases, groups to redress injuries to their reputation caused by false statements made by others about them. A defamatory statement holds a person up to public hatred, ridicule, or scorn, such that the person’s image is damaged and existing and potential relationships are interfered with. Defamatory statements can be made verbally (slander) or in writing (libel). Defamation is important in the context of corporate reputation because defamatory statements that are publicized about an organization may negatively affect stakeholders’ perceptions of the organization. This entry describes the legal process of a defamation lawsuit, including the six essential elements in the plaintiff’s burden of proof; the types of defenses that may be established by the defendant; and the three types of damages that may be awarded to a successful plaintiff.

Defamation is a civil action because it is considered a private dispute between two parties. Historically, it could also give rise to a criminal action because it was feared that defamatory statements might lead to a breach of the peace. Some states still have criminal libel on the books.

Individuals and corporations, both for-profit and not-for-profit, may sue for defamation. Unincorporated groups, such as labor unions, political action groups, trade associations, and fraternal organizations, may have standing to sue, but that depends on the state.

Those who cannot sue for defamation include deceased individuals and governments. An action may not be brought on behalf of a deceased individual because the person can no longer suffer injuries from damage to his or her reputation. In some states, however, family members may continue an action if the plaintiff dies during litigation. In the United States, governments and their agencies cannot sue for defamation. This rule applies to every level, from the federal government to the local school board.

The Plaintiff’s Burden of Proof

To be successful in a defamation action, the plaintiff must prove the following six essential elements: (1) publication, (2) identification, (3) defamation, (4) fault, (5) falsity, and (6) injury.

Publication

Publication for the purposes of defamation means that one person in addition to the writer and the defamed person saw or heard the statement. Posting a defamatory message to Facebook or tweeting it is considered publication. Forwarding or sharing the statement on to others is a republication of the defamation and, therefore, a new defamation.

Identification

Plaintiffs must show that the statement was actually about them. Many defamation actions arise as a result of the misnaming of individuals. For example, the Los Angeles Times once reported that a Dr. Behrendt had been arrested and charged with the theft of narcotics. The doctor who was arrested was Ralph A. Behrend; R. Allen Behrendt was a doctor working in the same hospital. Behrendt sued and won.

Identification does not require that the person be explicitly named. It is sufficient if even a few people in the community would recognize the person defamed from the statement.

When a group as a whole is defamed, whether there has been identification of individual members of that group depends on its size. Generally, if the group has fewer than 25 members, then each member of the group probably has been identified. If the group has more than 100 members, there is no identification. For groups falling in the middle, it will depend on the circumstances and the statement. For example, an article that claims that the members of a football team use an amphetamine nasal spray to make them more aggressive defames each team member. But had the article claimed that many members, but not all, used the nasal spray, no one player could argue that he had been identified.

Defamation

Plaintiffs have to prove that they were defamed, which is more than just being embarrassed. A defamatory statement will make friends, colleagues, and acquaintances think less of the person and stop having anything to do with him or her. Allegations of criminal conduct, incompetence, and sexual impropriety are examples of defamatory statements. Calling someone a communist or a homosexual was once considered defamatory and may still be so in some states. Whether an allegation rises to the level of defamation depends on the historical and cultural context in which it is made.

Accusing a business or a professional of incompetence is defamatory. But when the quality of a product or service is called into question rather than the business itself, it is called trade libel or trade disparagement. In a trade libel lawsuit, the plaintiff must prove that the business lost money as a direct result of the statements.

Fault

Plaintiffs must prove that the defendant was at fault in publishing the false defamatory statement. The level of fault to be established depends on whether the plaintiff is considered a public official, public figure, or private person.

A public official for the purpose of defamation law holds a position that invites public scrutiny and usually involves policymaking responsibilities. Elected government officials are obviously public officials. But a wide range of other government employees also qualify as such if they have, or are believed to have, substantial responsibility for, or control over, government affairs.

Public figures also tend to be in the public eye and invite public scrutiny, but they lack the formal authority of public officials. All-purpose public figures have assumed roles of special prominence in the affairs of society and thus have pervasive power and influence. For example, the National Foundation for Cancer Research (NFCR) was considered a public figure in its defamation lawsuit against the Better Business Bureau, which had publicly questioned the NFCR’s fund-raising statements. The court held that the foundation had thrust itself into the public eye through its massive solicitation drives and its claims about its judicious use of funds to find a cure for cancer. It was the NFCR’s success at getting its name before the public that led to the all-purpose public figure status designation.

Some individuals are considered limited-purpose public figures because they have voluntarily thrust themselves into the middle of a public controversy to affect the outcome. These individuals are considered public figures only for defamatory statements related to the controversy in question. Courts have held that the controversy must be a real dispute that affects some segment of the general public. In 1990, Southern Air Transport was held to be a limited-purpose public figure for the purposes of a defamation lawsuit arising out of the Iran-Contra scandal of 1985–1986. When Southern Air Transport’s covert role in the shipment of U.S. arms and supplies to the Nicaraguan Contras became publicly known, the company hired a public relations firm to help it influence the outcome of the controversy.

Public officials and public figures have to prove that the defendant published the defamatory statement with actual malice, which is knowledge of falsity or reckless disregard of the truth. Despite the wording, actual malice does not mean ill will or spite. It means that the defendant knew that the statement was false or recklessly disregarded its truth or falsity and published it anyway. The U.S. Supreme Court established the actual malice standard to make it difficult for public officials and public figures to win defamation lawsuits because the Court wanted to encourage open discussion and public scrutiny of those in positions of power. Public officials and public figures should expect to be commented on and should have the ability to defend themselves in the media.

Plaintiffs who do not fit into either the public official or public figure categories are private persons. Private persons typically do not expect, or receive, public scrutiny and are more vulnerable to injury when a defamatory statement is made about them because they do not have the same means to defend themselves as a public figure does. Private persons also have to prove fault, but the level of fault required varies by state. Among the possible levels of fault are actual malice, negligence, and a level between the two, often referred to as gross negligence or gross irresponsibility. Actual malice is the same as for public officials and public figures. Negligence is the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances. And gross negligence falls between the two. The majority of states in the United States require private person plaintiffs to prove negligence.

Falsity

All plaintiffs with one exception have to prove that the defamatory statement is false. In cases involving private persons not involved in matters of public concern, the onus is on the defendant to prove that the statement was true.

Injury

Plaintiffs must show that their reputations were actually damaged or harmed by the defamatory statements. Embarrassment and hurt feelings are not sufficient. If a plaintiff is able to establish actual malice on the part of the defendant, damages are presumed. In those cases, the court believes that the statements must have caused harm given the egregious nature of the defendant’s actions.

Defenses to Defamation Suits

At the end of the plaintiff’s case, the burden shifts to the defendant to establish a defense. Several defenses are open to the defendant.

Statute of Limitations

Defamation actions must be brought within one to two years of the date of publication, regardless of whether the plaintiff was aware of the statements at the time. If the deadline is missed, no action for defamation can be brought.

Truth

Because almost all plaintiffs have to prove falsity now, truth has lost some of its importance, but it is still the best defense because a statement cannot be defamatory if it is true. The information need only be substantially true, which means that the impact of the information would have been no different if the details had been accurate.

First Amendment Opinion Defense

The First Amendment protects statements of opinion, which means that people are allowed to state their opinions about others without fear of being sued. But if the opinion amounts to defamation, it cannot include an objective fact. Thus, Hustler magazine was free to imply that evangelist Jerry Falwell’s “first time” was with his mother in an outhouse because it was parody and everyone recognized it as such. But a statement that a wrestling team from another school cheats is capable of being proved true or false even if it is just an opinion.

Privilege

The law recognizes absolute and qualified privileges, which are exceptions to the normal rule. Government officials acting in their official capacity have absolute privilege from defamation litigation. It does not matter what their motive was for making the statements or how true the statements are, provided they are made during the course of official proceedings. So senators can say whatever they want while the Senate is in session and not be sued for defamation. Similarly, all individuals taking part in judicial proceedings have an absolute privilege. Judges, attorneys, and witnesses cannot be sued for defamatory statements made in open court.

A qualified privilege is an extension of the absolute privilege and grants others permission to report defamatory comments made in a privileged setting without being held responsible for the defamation. Without qualified privilege, the news media would be unable to fully and accurately report on government proceedings for fear of defamation lawsuits.

Companies may have a qualified privilege to share with others information essential to the conduct of their business. To qualify for the privilege, the statements must be made in the ordinary course of business, in good faith and with a business purpose, and without spite or ill will.

Consent

If someone consents to the publication of a story or article, he or she cannot later claim that it was defamatory. Consent can be explicit or implied. If the plaintiff is told that a certain statement will be published and he or she says to go ahead, the plaintiff has explicitly consented to the publication. It may be considered implied consent if the plaintiff’s response to a defamatory statement is published along with the statement. Telling others yourself about the defamatory statement is also seen as implied consent.

Damages

If the plaintiff is successful in establishing the elements of defamation, damages are awarded. There are three kinds of damages: (1) compensatory, (2) special, and (3) punitive.

Plaintiffs who prove their case are awarded compensatory damages, which is a sum of money to compensate them for their loss of reputation and pain and suffering. When determining compensatory damage awards, juries consider factors such as how many people saw or heard the allegation, how serious it was, how much the plaintiff suffered as a result, and how much care, if any, the defendant took to get the statement correct. Juries also consider the reputation of the plaintiff before the defamation.

Special damages are compensation for out-of-pocket monetary losses suffered by the plaintiff. A therapist’s or doctor’s bill is an example of special damages, as is the loss of a business contract because of the defamation.

Punitive damages are meant to punish defendants for their misconduct and are unrelated to the actual harm suffered by the plaintiffs. They are like fines in criminal cases that are levied to punish and serve as a warning to others. They are awarded especially when the defendant’s statements have been particularly egregious.

Defamation and Public Relations

In an effort to maintain a healthy public dialogue about political and social issues, the U.S. Supreme Court has made it difficult for public officials and others in the public eye to sue for defamation successfully, effectively protecting journalists who tend to cover such matters. But public relations practitioners need to be cognizant of what constitutes defamation to protect themselves and their clients from lawsuits. They also need to be aware of the potential downside of their clients suing for defamation. Such lawsuits may well be newsworthy and generate more media attention than the original statement did. And if the plaintiff is a large corporation, it may lose in the court of public opinion if the defendant happens to be an individual or a small competitor.